Dorf on Law

In my latest FindLaw column , I consider the legal implications of the President's use of a Blackberry. (President-elect Obama is apparently being told that he has to stop using his once he's President because of security concerns and the requirements of the Presidential Records Act). The core point I make in the column is that legal duties to disclose information---whether those that apply to govt officials or private firms---should not depend on the medium in which the particular information happens to be stored but instead, on whether the information is of the sort that should be disclosed. In particular, I note that email and text messaging can, in different circumstances, be more like documents or more like oral speech, and I conclude that in some respects it is its own unique method of communication. Here I want to play the futurist for a moment and ask about a dystopia of total recall. Already, so-called "life bloggers" attempt to record nearly their entire...

The Austin American-Statesman reports that Alberto Gonzales has been unable to land a job with a law firm since resigning from his position as attorney general. Gonzales blames this on the economy and the "tough time for law firms." Under the circumstances, he says, firms "are going to be careful about bringing on people where there are questions about things that may have happened in their past." Apparently Gonzales thinks that in good times law firms don't care about "things that may have happened in [a job applicant's] past." With the caveat that I don't know much about law firm hiring practices, I'd venture he's off base about that. Carolyn Elefant's interpretation at Legal Blog Watch is that firms are giving Gonzales a taste of his own medicine and rejecting him on the basis of his political views. She points out that many big firms are representing Guantanamo detainees in habeas proceedings and suggests that Gonzales...

The Center for Progressive Reform (CPR), among others on the left, seem poised to oppose the Sunstein nomination to lead the Office of Information and Regulatory Affairs (OIRA). This is OK as far as it goes, but it could easily jump the tracks and get silly. OIRA is an über-agency in the executive branch, reviewing rulemakings of other “action” agencies far and wide. Every issue it touches is serious and most are very difficult. In my own field (environmental law), OIRA has often opposed rules with reasons I’ve found weak-to-ridiculous. But when the fight over Sunstein gets going, it’s likely to include non-issues like the conduct of cost-benefit analysis (CBA) in rulemaking at all. The conduct of CBA isn’t worth fighting over. It isn’t going to be abolished. Period. Sunstein’s been a champion of mending CBA, but he’s attacked rulemakings like arsenic’s parts per billion in drinking water that many on the left thought fully cost-justified. That’s his baggage. But we should k...

After considering the matter, the Pentagon has decided not to award the Purple Heart to veterans who suffer from Post-Traumatic Stress Disorder (PTSD) as a result of their service. The Purple Heart is a medal bestowed upon soldiers wounded or killed in enemy action, entitling its awardees to various benefits, including waiver of co-payments for medical treatment at veterans hospitals as well as high priority in scheduling medical appointments. PTSD is a psychiatric disorder that afflicts many exposed to highly traumatic events (such as war combat) and is characterized by symptoms that can include recurring nightmares, uncontrollable rage, and severe depression. Victims of PTSD often find it impossible to work or otherwise function productively in the ways they could prior to their traumatic experiences. Those who defend the exclusion of PTSD from the injuries qualifying a veteran for the Purple Heart make some variation on four arguments: 1) it is sometimes difficult to diagnose PT...

President-elect Obama and his economic advisors have been hard at work trying to come up with a legislative package to prevent the recession from becoming a depression (and maybe even to turn the economy around). Who are the people giving him economic advice, and what might we expect from them? The short answer is that the Obama team is generally made up of safe, uninspired choices who are nevertheless offering much more progressive advice than we might have expected from them. One can only hope that they will continue to deny their own histories at least long enough to get the economy moving in the right direction. I am, of course, hardly the first observer on the left side of the ideological divide to be disappointed by Obama's choices of economists to join his team. Among many critiques, one of the best that I have read thus far is in the most recent issue of The Progressive ("The Great Recession," by Matthew Rothschild, January 2009). Rothschild describes the ti...

In latest FindLaw column (available here ) I describe and react to a paper (forthcoming in the Cornell Law Review and available in draft here ) by two of my colleagues at Cornell, Valerie Hans and Ted Eisenberg. The paper persuasively argues that the admissibility of a defendant's prior criminal record has several consistent effects: 1) it deters defendants with a record from taking the stand in their own defense; 2) it significantly reduces jury reluctance to convict in marginal cases; 3) it does not affect jury assessment of the defendant's credibility, despite the fact that its admissibility is specifically premised on its relevance to witness credibility. I propose a number of possible reactions one might have to these data, including the radical (or reactionary) notion that we might disqualify criminal defendants from testifying at own trials. In this post, I want to consider a different (and surprising) fact that emerges from the data: juries do not appear to count pr...

In an op-ed in yesterday's NY Times , John Bolton and John Yoo made an argument that strongly echoed a 1995 Harvard Law Review article by Larry Tribe: namely, that the Constitution requires important international commitments to be adopted by 2/3 of the Senate exercising the treaty ratification power, rather than by simple majorities in both houses of Congress. (Tribe's article was a response to an article by Bruce Ackerman and David Golove, and the particular issue that separated them was whether NAFTA was invalid because not a treaty. Tribe said it was; Ackerman and Golove said it wasn't. Neither article is available free to all online but both are easily found on Westlaw, Lexis, Heinonline, or JSTOR for subscribers.) Bolton and Yoo don't exactly couch their argument as one of constitutionality, although in some of his academic work Yoo has veered in that direction. Bolton and Yoo make two points: 1) The U.S. should be skeptical of commitments to international b...

I learned by email to alumni. In addition to creating an open deanship (and who wouldn't want to be in charge of raising money right now?), Kagan's nomination to this position certainly makes her a more likely candidate for a seat on the Supreme Court, should one open up during Obama's Presidency. Posted by Mike Dorf

Do elected officials have a duty to follow the rulings of courts, even when the courts will not enforce those rulings? To the non-lawyer, this question may be reminiscent of trees falling in empty forests, but for constitutional theorists, it is a central issue in the debate over the Constitution outside the courts. And, if push comes to shove, it may end up playing a role in resolving the question of Roland Burris's eligibility to serve as Senator from Illinois. There are, it seems to me, four Senatorial paths to blocking Burris: 1) The easiest mechanism would be to seat him and then expel him, but this requires a 2/3 vote. 2) Next comes the technicality route: Declare Burris ineligible because his commission isn't counter-signed by the Illinois Secretary of State, who is refusing to sign, while the Illinois courts are going to take their time ruling on an action seeking to compel the signature. (It's the fun part of Marbury v. Madison all over again!). 3) Then there's...

Happy New Year to all DOL readers. The hosting of the blog has been a bit buggy over the last month. I'm looking into a long-term fix but meanwhile, thanks for your patience. Posted by Mike Dorf